RE TYL

RE TYL

Madam Mak's unauthorised occupation of TYL's flat and her personal benefit from related transactions created a serious conflict of interest and breach of fiduciary duties and the rule against profit; accordingly she could no longer act as committee, the Official Solicitor was appointed as replacement and authorised to sell the property, and interim measures (three months to vacate and a HKD 16,000 monthly occupational rent) were imposed to protect TYL's interests.

Citation
RE TYL
Parties
Mentally Incapacitated Person: TYL; Committee for the Estate (removed): Madam Mak; Appointed Committee for the Estate: Official Solicitor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 August 2009
Case Number
HCMP1840/2006
Procedural Posture
Application Under Part II of the Mental Health Ordinance Concerning Appointment/removal of Committee / Reasons for Decision (judgment)
Outcome
Committee removed and replaced by the Official Solicitor; Official Solicitor authorised to sell the property; interim occupancy terms imposed
Legal Topics
Committee Appointment, Conflict of Interest, Self Dealing, Removal of Committee, Sale of Property, Occupational Rent
Source Language
EN
Mental Health Trusts and Estates Equity Committee Appointment Conflict of Interest Self Dealing Removal of Committee Sale of Property +1 more

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Parties

TYL

Mentally Incapacitated Person

Madam Mak

Committee for the Estate (removed)

Official Solicitor

Appointed Committee for the Estate

Procedural Posture

Application Under Part II of the Mental Health Ordinance Concerning Appointment/removal of Committee / Reasons for Decision (judgment)

Legal Issues

  1. 1 Whether the committee's occupation of the protected person's flat without court sanction constituted a conflict of interest and breach of fiduciary duty
  2. 2 Whether the committee profited from dealings with the estate by obtaining a higher rental from her own property
  3. 3 Whether the committee should be replaced and an impartial person appointed to act in the best interests of TYL

Ratio Decidendi

Madam Mak's unauthorised occupation of TYL's flat and her personal benefit from related transactions created a serious conflict of interest and breach of fiduciary duties and the rule against profit; accordingly she could no longer act as committee, the Official Solicitor was appointed as replacement and authorised to sell the property, and interim measures (three months to vacate and a HKD 16,000 monthly occupational rent) were imposed to protect TYL's interests.

Court Disposition

Committee removed and replaced by the Official Solicitor; Official Solicitor authorised to sell the property; interim occupancy terms imposed

Orders

  • Madam Mak removed as committee and Official Solicitor appointed as committee for TYL
  • Official Solicitor authorised to sell TYL's flat at Yuk Sau Mansion, Happy Valley